I concur with the reasoning and conclusions contained in the opinion prepared by Justice Knight.
We are faced in this case with a situation where the Juvenile Court has seen fit to take the custody of these two children from their lawfully appointed guardian in a most informal proceeding “without any trial”, and to place their custody in the probation officer, for the sole purpose of sending the children to England, without any showing of unfitness of the guardian or inability to support the children, and over the protests of the guardian that he desired to dismiss his petition, and over the protests of the children that they desired to remain with the guardian. Although it may be conceded that the Juvenile Court may thus modify the decree of the Probate Court appointing a guardian, under no theory has the Juvenile Court the power to thus collaterally attack *678and set aside the decree of the Probate Court in the absence of some showing so as to bring the case within the provisions of § 700 of the Welfare and Institutions Code.
There are certain factors mentioned but not emphasized in the opinion of Justice Knight that, in my opinion, conclusively answer every contention contained in the dissenting opinion of Justice Ward.
1. In the first place, the record conclusively demonstrates that the sole reason why the trial court determined to take the custody of these children from their lawfully appointed and acting guardian was that, in his opinion, the children would be better off with their paternal relatives in England. The bill of exceptions recites that near the close of the informal proceedings in which the order here appealed from was made “Judge Dunne stated that he felt the children should be sent to their relatives in England and that they should be with their blood kin and that arrangements should be made as soon as possible to send them there and that they were going to England.” The matter was then continued for the sole purpose of awaiting the report of the American consul in London on the financial ability of the relatives there to support the children. Thereafter, the guardian moved to dismiss the petition. The record states: “Judge Dunne then stated that the matter had been gone into and that there were relatives who had come forward offering the children a home and that the motion should be denied, and that the Savages had no place in the planning for these children since there were relatives who had a prior right even though Mr. Savage was the legal guardian.” The Probation Officer then moved that the children be declared wards of the Juvenile Court “committed to the care of the Chief Probation officer, and held for placement with relatives.”
It is quite obvious from a reading of 'the record, and no other inference or conclusion is possible, that the trial court was of the opinion that the children would be better off in England and that it was for this reason alone that their custody was taken from their guardian. The Juvenile Court has no jurisdiction to modify the decree of the Probate Court for such a reason. Section 700 of the Welfare and Institutions Code, under which this proceeding was instituted, contains no such ground for exercising jurisdiction. That might *679well be a factor in a contest to modify the guardianship decree but it has no place in this Juvenile Court proceeding.
Moreover, even if such a factor were relevant in this proceeding, it is now impossible, because of the present war, to send the children to England. At the oral argument it was admitted by counsel for the respondent (although he contended such facts should not be considered) that since the entry of this decree in March of 1939 the children have been placed in foster homes, have been separated from each other, and have frequently expressed a desire to return to the Savages. Certainly it was never contemplated by the trial court at the time of this hearing that these children should be separated and placed in foster homes. As already pointed out, the factor that motivated the trial court was that the children would be better off in England with the paternal relatives. It having become impossible to carry out the decree as intended, the. decree must fall.
2. In the second place, there is no evidence in the record that the Savages are unfit to have custody of these children, or unable to support them. Quite to the contrary, the evidence, without conflict, shows that they have given these children a fine home and loving care. The children obviously love the Savages and want to be with them. The dissenting opinion makes much of the fact that Mr. Savage verified a petition alleging that the children were destitute. That is true. But it is also true that the record, without conflict, shows the circumstances under which that petition was filed. Mr. Savage had discussed many times with the Probation Officer, and other employees of the Juvenile Court, the question of securing state and county aid for the children. He had also discussed the matter with the County Welfare Board of San Francisco. The San Francisco authorities quite obviously felt that the Contra Costa authorities and the State Welfare Department had acted improperly in the matter. There is not one word of testimony that Mr. Savage ever contemplated putting in issue the. question of the custody of the children. The sole question involved was state and county aid. He was told that to secure such aid he must sign certain petitions. These were handed to him already filled in with typewriting. He believed, and reasonably so, that the only question involved was whether he was entitled to state and county aid. Apparently the Ju*680venile Court authorities mistakenly believed that aid could be granted only to wards of the court. When the hearing developed into a hearing relative to custody, Savage immediately sought to dismiss that petition. This he should have been permitted to do. The evidence demonstrates that the petition was filed as a result of mistake and error. Although Savage had stated in the petition that the children were destitute, before the end of the hearing both he and his wife stated that they wanted the children regardless of aid. That being so, there is no evidence to support the finding of destitution.
The dissenting opinion quotes almost in its entirety the prior opinion of this court in the habeas corpus proceeding. That proceeding involved the pleadings and not the evidence. The evidence could not properly be, and was not, considered in that proceeding. None of the facts above-mentioned, based on the evidence, were involved in that proceeding. For these reasons I concur in the order contained in Justice Knight’s opinion.